In politics, as in marriage, moments come along when sensitive compromise can avert a major conflict down the road. The two of us believe that the issue of same-sex marriage has reached such a point now.
We take very different positions on gay marriage. We have had heated debates on the subject. Nonetheless, we agree that the time is ripe for a deal that could give each side what it most needs in the short run, while moving the debate onto a healthier, calmer track in the years ahead.
It would work like this: Congress would bestow the status of federal civil unions on same-sex marriages and civil unions granted at the state level, thereby conferring upon them most or all of the federal benefits and rights of marriage. But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions, which provide that religious organizations need not recognize same-sex unions against their will. The federal government would also enact religious-conscience protections of its own. All of these changes would be enacted in the same bill.
For those not immersed in the issue, our proposal may seem puzzling. For those deeply immersed, it may seem suspect. So allow us a few words by way of explanation….
[i] For those not immersed in the issue, our proposal may seem puzzling [/i]
Yes, indeed.
I’m glad to see that Jonathan Rauch recognizes the issues of conscience that can be posed by gay-union legislation. Most secular Americans are oblivious those issues—and policymakers in Western Europe have tended to dismiss them out of hand.
On the face of it, this is a proposal that I could support.
Ditto Todd. Just glad even to see this kind of discussion in the NYTimes.
[blockquote] But there would be a condition: Washington would recognize only those unions licensed in states with robust religious-conscience exceptions,[/blockquote]
And those exceptions would last about…four years (one election cycle).
Wedding photographers: get ready to be sued if you don’t do gay weddings.
Church camp ground owners: get ready to be sued if you don’t allow gay weddings.
These are entirely predictable because they have already occured. What other unintended consequences? Who knows?
#4
Precisely! Camel’s nose inside the tent.
Can’t work for several other reasons as well.
Don
I, too, would support this. The problem is, similar compromises have been worked out on the state level and then it goes before a radical judiciary and – bizarrely – they see the compromise as evidence of discrimination. (See California and Massachusetts.) The biggest problem with respect to many of these so-called “social issues” like abortion and homosexuality is that judges don’t trust the people to reach political compromise. And it’s destroying our country.
I would take issue with one of their agreed premises: most gays and lesbians feel they need and deserve… marriage. A more accurate premise would be that most gays and lesbians would like the RIGHT to marry [as proof of societal acceptability], even though only a small minority [e.g. check Canada, Mass., Calif.] will actually commit to marriage. Nevertheless, I think the article relfects a thoughtful discussion.
Jonathan Rauch has been promoting gay ‘marriage’ for years. His ‘Case for Gay Marriage’ is an example of illogical reasoning. Consider his argument in syllogistic form:
First Premise:
Marriage is necessary to provide reliable caregivers.
This assumption is not true. It is, in fact, verifiable false since we are able to observe that reliable caregivers exist who are not married to the people to whom they provide care. In fact, some paid caregivers are superior in their reliability than some spouses.
Second Premise:
Marriage is necessary to tame men.
This assumption is hypothetical and unverifiable. Who says that men need “taming� What does “taming†mean? Does it mean to make men more effeminate or to teach them to cook and clean? Are all unmarried men untamed? Are all married men tamed?
Rauch’s Conclusion:
Therefore, marriage is equally necessary for heterosexual and homosexual couples.
His conclusion is not valid as it does not necessarily follow from the premises.
Rauch’s premises are not verifiably true so this is not a sound argument. Further, his conclusion does not logically follow from his premises, so this argument is not valid. Lacking true premises and a valid conclusion, Rauch’s argument is fallacious. Enter here those who are willing to set aside reason.
OK, is this the way it goes? Bill and Ted marry in State X, which authorizes gay marriage. So do Bob and Tom. Each couple files a joint federal income tax return, so long as they live in State X. But then Bill and Ted move to State Y, which does NOT authorize gay marriage. Do Bill and Ted lose the right to file a joint federal return, even though they used to have that right when they lived in State X, and even though Bob and Tom — who still live in State X — can file joint returns? Is that a denial of the Equal Protection of the laws, that Bill and Ted — who are US residents and taxpayers — are being treated differently for federal tax purposes — than Bob and Tom?
A statutory proposal like this could employ a generation of attorneys.
[i] Is that a denial of the Equal Protection of the laws, that Bill and Ted—who are US residents and taxpayers—are being treated differently for federal tax purposes—than Bob and Tom? [/i]
We had something like that for years. The federal income tax had no “married filing jointly” option until the 1950s: taxpayers filed as individuals. But one-income families living in community property states had an advantage over their counterparts elsewhere: half of their income belonged to the nonworking spouse. Result: a sort of income-averaging—and a lower tax bracket.
“But clinging to extremes can also be quite dangerous. In the case of gay marriage, a scorched-earth debate, pitting what some regard as nonnegotiable religious freedom against what others regard as a nonnegotiable human right, would do great harm to our civil society. When a reasonable accommodation on a tough issue seems possible, both sides should have the courage to explore it.”
I agree with those who view this as the camel’s nose under the tent and fodder for armies of lawyers. With today’s Democratic climate and impending liberalization of the U.S. Supreme court, “nonnegotiable religious freedom” will lose to this expanded “nonnegotiable human right” every time. The impact of this “reasonable accommodation” upon our religion, culture, and our families, will be more “dangerous” than any danger imagined by the authors if the homosexualists are not accommodated and we “cling to extremes.”
The authors seem to believe that challenges and opposition to same-sex marriage come only from a religious basis. This is not the case. There are those who raise serious questions about same-sex marriage w/o any reference to religious tenets. It could be that such voices are too few in number to be taken seriously “politically” — at the moment, at any rate. But the apparent absence of this perspective from Blankenhorn and Rauch’s piece causes me to wonder how truly informed in this matter they are.
If a federal recognition of same sex unions with religious exemption were passed without a rider providing for non-severability, the courts would remove the religious exemption on equal protection grounds and you’d be left with only federal recognition of same sex unions.
Despite the First Amendment’s plain language supporting freedom of religion, the court’s have traditionally subjugated that right when it interferes with Equal Protection and other anti-discriminatory rights. I don’t have Westlaw at the moment but there are two interesting cases- One involved a state worker who the court ruled could not be reinstated after peyote was used as part of his Native American religion- Drugs policy trumped religious freedom. The other case was a historical church that wished to expand was denied expansion because their freedom of religion was deemed by the Court to be less important than zoning laws that protect historical buildings.
The advancement of religious freedom in case law has come from a reframing of the debate off of religion and onto Free Speech which still thankfully enjoys robust protection by the Court.
This is an overly simplified explanation of case law and I’m sure other attorneys can chime in and some may well disagree with my analysis. My 2 cents is that this federal law “compromise” would no longer be a compromise once litigation ceased and the Courts got through with it. After all, the DOMA law referenced in the op-ed piece is being constitutionally challenged after the 9th Circuit has apparently branded it unconstitutional (the only saving grace is that the 9th circuit is the most overruled court of appeals in the country).
#4 – I can’t think of a better way to ruin a gay wedding than to sue a photographer and go to camp that doesn’t want you. There are plenty of great gay photographers, and lots of places that would willingly take cash. Including Christian ones.
#8 – you’ve singlehandedly demolished secular reasons to get married. However the reason why the state supports marriage includes
1) it is a cheaper form of welfare. Enough men abandoned wives and children, that it became a burden on communities and states. Thus the state requires men to take care of their wives and children.
2) Men and women do not need to have peaceful relationships. It can be a matter of war. Marriage encourages peace within the war between the sexes.
And no, there are cases where yes, marriage is not a good welfare state, and there is violence within marriage. But by and large, marriage is a good institution for the culture. For everyone. Bible or not.
John, i’d agree with you re #4, except that isn’t what has happened. Is happening. Which is why i’m intrigued that the conversation made it to the pages of the NYTimes, making me mildly hopeful. Mildly hopeful, that’s me.
John Wilkins #14, a photographer has already been sued for refusing work at such a purported wedding. The case was in New Mexico; the photographer lost.
Having “religious-conscience protections” as outlined by the authors is insufficient. It needs to be far more comprehenisve: specifically, it needs to stipulate that no person can suffer job discrimination, up to and including termination, for expressing an opinion on the morality of this behavior. Then, maybe we can have a deal.
#16 – what case was this? A photographer can’t be forced to work against their will. Send details.
Last year the New Mexico Human Rights Commission ordered Jon and Elaine Huguenin of Albuquerque to pay $6,600 for [url=http://volokh.com/posts/1207764182.shtml]declining to photograph a lesbian commitment ceremony[/url].
yes, it is true no. 17 i heard it on NPR. if it had been me, i would have made my feelings known and then if forced by threat of lawsuit, to take the pictures of everyone at that ceremony at their absolute worst. no lawsuit and they wouldn’t recommend me to their buddies. some people don’t need to feel welcome, they feel a need for pushing their agenda down someone else’s throat. i too liked the article if it could be worked out somehow for both parties.
Alice Linsley [#8] writes:
Alice, your last two questions are good ones. But you seem to think that, as a pre-condition to authorizing same-sex civil unions, we would need to be virtually 100% certain that both answers are “yes,” with essentially no possibility of error.
There are indeed some actions that we won’t take without being hyper-confident that we’re not making a mistake. Typically these actions are the kind in which the consequences of a mistake are widely viewed as a Very Bad Thing, e.g., death-penalty cases.
Giving limited legal rights to couples in same-sex unions doesn’t seem to be one of those actions. Even if doing so turned out to be a mistake, the consequences aren’t likely to be a VBT.
(Some might think that those who favor civil unions are jeopardizing their own immortal souls by being accessories to gravely-sinful behavior. I suspect that most who favor civil unions who fall into that category are A, willing to take that chance, and B, not at all willing to let others make the choice for them.)
John, #14, not sure where you got the #2 reason for the State supporting marriage, and your #1 reason is stated in a strange way. When I was in law school in the late 70s, the reason given for government support of marriage was to encourage a basic family unit that provided for children and the growth of a healthy society – similar to what you gave in #1, but not quite as cynical a reading. And that emphasis on the reason for government support (and regulation of marriage, by the way) stuck until the early 90s, when the Clinton’s began to espouse the theory (for political reasons, obviously) that families could be made up of anybody who lived together in the same house and when Hillary wrote her famous book, “It takes a village,” to expand that notion even further, that maybe marriages really weren’t that important to raising children. I have never heard of the State supporting marriage as a peace-keeping institution and doubt that to be the case, though I’m willing to review anything you want to cite in support, and, also, I would be interested in how that fits into a scheme in support of recognizing gay marriages, as obviously, the #1 reason of encouraging support for children would not seem to be a valid reason to support gay marriage.
Thanks for the link Irenaeus. For the record, I’m surprised. I don’t think that the photographer should be coerced, and this should be challenged.
Marriage is a form of mutual welfare – I don’t have a negative connotation to “welfare.” I think mutual welfare is a good thing. There is a history to the state backing up marriage contracts which you might find interesting.
To clarify, I don’t know if my reason #2 is for the state, but it is good for the culture. Democratizing and spreading out marriage among dyads (discouraging polygamy) is a way of ensuring that men have partners. Married men are less likely to engage in violence, it seems. Especially against women.
There are good reasons for marriage, even outside of scripture. It is not a perfect institution, but it is the best one we have for social stability. Capitalism, however, and its concomitant partner, the welfare state, do make marriage less strong, but on different fronts. Capitalism diminishes the importance of the virtues marriage extols, and the welfare state diminishes the incentives that encourage marriage.
I could live with this. In fact I think this sort of arrangement is inevitable … if we’re lucky.
Contrary to what many supporters of gay marriage assume, many of those who have strong reservations about SSM do in fact have gay friends and relatives who are “married”. Personally speaking, I’m on good terms with my lesbian sister and was even a member of her “wedding”. My sister and her partner have two adopted children who I am morally certain have a more stable and loving environment than would have been provided by their straight natural parents. I have close friends, a gay couple in a civil union, who’ve been together longer than my wife and I, who not only were my room mates but would never have met but for me. At one time if I were asked if I believed in gay marriage I could have replied, along with the Baptist who was asked if he believed in infant baptism, that not only did I believe in it, but I’d seen it done (and even been a member of the service).
However, after being married and having children, as well as having seen many of the gay couples I knew move into easily into the more privileged reaches of the middle class (even those with children) I have changed my views. Although I respected these relationships and couldn’t see why, for instance my sister’s partner and co-mother of their two adopted children couldn’t be covered by my sister’s health insurance after she lost her job, it became harder to see how these relationships, especially those in states with civil union laws, were significantly burdened by being viewed as not identical with traditional marriage. Additionally after having reflected, as a parent, on the nature of marriage I came to the view that, despite the undeniable overlap shared by long term gay relationships and traditional married relationships, there’s not enough shared common ground in terms of social function, outcome, and dare I say it, value to justify identifying long term monogamous gay unions with traditional marriage.
Simply put, heterosexual unions produce children and successful heterosexual unions, i.e .marriage, produce successful children and successful societies. The value of marriage for society and children themselves is too critical to risk diluting the notion of marriage by conflating it with any other relationship. Marriage is historically about parenthood and therein lies its value. This view leaves open the possibility of recognizing gay households with adopted children as being somehow equal to married households with children without denying the value of responsible parenthood for both children and society and that parenthood is constitutive of marriage. (Having grown up in a single parent household — single by paternal abandonment — I have little sympathy with those gay couples who choose to become parents by artificial insemination. This is nothing more than an indirect way of enforcing or even sanctioning paternal abandonment.)
I should also mention that the initial impetus for rethinking my views on SSM came from seeing how comfortable my friends and relations, gay or straight, who supported SSM were demonizing those who disagreed with them. This antagonism emotionally alienated me from my early unreflective pro SSM position even before I came to have principled theoretical objections to it. Sad but not surprising to say my developed views, which I try to keep to myself, have strained or ended long standing relationships when they have become known.
According to many proponents of SSM, gay ordination, etc., it’s not supposed to happen this way. The most decent among the reeasserters keep saying let’s just have a group hug, feel each others pain, and then the traditionalists will see their error of their ways. The worst deny that good faith, principled objection to the reasserter agenda is even an option. Based on my experience, I think both views are mistaken and the latter is especially counterproductive.
Charming Billy, thank you. I’ve walked that same lonesome valley. Came out at the same pass, too.
For those of you who would support civil unions do you have any principle that would limit civil unions to same-sex couples? How about a mother and adult sons? What about three guys who would like to share only expenses?
What’s sad about it? You’ve alienated family and friends on account of your religious and/or ideological views. You should be proud. You’ve turned your back on family — family that was, in your words, raising children well — because, well, her raising children well was “wrong”.
And you reportedly did this on the firm foundation of persecuted people saying impolite things about their persecutors.
I’m sure the Bible covers all of this quite thoroughly in your favor.
Congrats, sir.
And the camp business already happened as well. Will the homosexualists respect “religious exceptions”? Of course not.
#23. Great post. And #26 has illustrated your final point quite well.
#26,
Bob, thanks for illustrating my point about how some SSM proponents are their own worst enemy. I really couldn’t have done a better job myself.
Had I tried to illustrate my point with an example of my own choosing, I’m afraid I might have wistfully selected an uncharacteristically thoughtful response, a la Jonathan Rauch, with whom it would be a pleasure to disagree. On the other hand if I had selected a more representative example of the sloppy thinking and unapologetic animus I was complaining of, it might have come across as tendentious or prejudicial.
However your response struck just the right note of unreflective ill will that I wished to illustrate, while at the same time making it clear that you don’t have to go far out of the way to find SSM proponents who can’t or won’t respond effectively and graciously to those who don’t share their views.
Oh, dear, how awful of me. I was RUDE. But “ill will”? Did I wish you ill? The only ill you suffer, at least from my perspective, is the loss of family. And who brought that upon you?
“Unapologetic animus” is taking away other people’s marriages, it’s most certainly not complaining when they do.
I’ve hurt your feelings. It’s not like I’ve compared your marriage to beastiality, though. And I’ve not suggested you’re a pedophile. Nor have I called you immoral or perverted or mentally ill.
Get back to me when I’ve harmed you in any concrete way and I’ll do my best to make up for it.
You guys kill me.
#30, Bob, the best advice I ever heard was: when you’re in a hole, stop digging.
Yeah, I know. I’m supposed to graciously accept legal limitations on my freedom and equality.
Just like you guys.
[blockquote]Yeah, I know. I’m supposed to graciously accept legal limitations on my freedom and equality.
Just like you guys. [/blockquote]
Bob, I’m a proponent of gay civil marriage, but you have to admit that gays and straights are both allowed to marry exactly the same people, and our freedoms are restricted in exactly the same manner.
You should have worded your post more “cleverly”. I’m gay. Your (real or hypothetical) sister is straight. We most certainly cannot marry “exactly the same people”.
But, hey, since you think it’s all the same, would you introduce me to her. Surely it would be just peachy for her to marry someone like me. Good old-fashioned hetero marriage. It would be bliss for her. No?
[blockquote]You should have worded your post more “cleverlyâ€. I’m gay. Your (real or hypothetical) sister is straight. We most certainly cannot marry “exactly the same peopleâ€. [/blockquote]
I worded it exactly as I intended to. You can marry a woman, just as a straight guy can. He can’t marry a man, either. Now, you might not want to marry a woman, but that’s not really the same thing.
[blockquote]But, hey, since you think it’s all the same, would you introduce me to her. Surely it would be just peachy for her to marry someone like me. Good old-fashioned hetero marriage. It would be bliss for her. No? [/blockquote]
Well, you can ask her, but her husband might have something to say about it. I’ll let you all work it out.
I know what you intended. It’s a common taunt. Nah-nah-nah-nah-nah… very playground. You just worded it wrong. You’re supposed to point out that I have the same marriage rights as other men. Not other straight people. “People” includes women. Women can marry men. I was just trying to help, so when the next gay person comes along and you want to demonstrate what a great “pro-civil marriage” guy you are and how understanding you are, you can drag out that ridiculous line and tease him or her so effectively, you’ll just bowl them over with your logic and, more importantly, your compassion. Heck, you’ll probably knock the gay right out of them.
Then everyone will be happier.
“her husband might have something to say about it”
Why would he care? He would, as you point out, be as free to marry another person as any other man. (notice, I said “man”… that’s the trick).
Don’t bother replying. I’m out of here.
#37,
Hi Bob,
I knew you’d be back. It’s like Lay’s Potato Chips, no one can eat just one.
You don’t even have to be gracious, just less defensive. Your approach doesn’t hurt my feelings nearly as much as it hurts your cause. Likewise, your psychologizing in #34 and #36 reveals more about your own motives than it does about Jeffersonian’s. This is self defeating.
Granting that your opponent, though incorrect, is motivated by good faith and sincere conviction is a powerful argumentative tool, even if it’s only a working assumption rather than a genuine feeling of respect. If you can muster at least a putative respect for your opponent’s person, while maintaining a strong disagreement with his or her views, your own views will receive a more sympathetic hearing. It’s in both our best interests to conduct the debate over SSM this way.
saw this some time ago, and with the Elves indulgence:
[blockquote](A scene at City Hall in Portland, or San Francisco, or anytown USA, near future )
“Next.â€
“Good morning. We want to apply for a marriage license.â€
“Names?â€
“Tim and Jim Jones.â€
“Jones? Are you related? I see a resemblance.â€
“Yes, we’re brothers.â€
“Brothers? You can’t get married.â€
“Why not? Aren’t you giving marriage licenses to same gender
couples?â€
“Yes, thousands. But we haven’t had any siblings. That’s incest!â€
“Incest?†No, we are not gay.â€
“Not gay? Then why do you want to get married?â€
“For the financial benefits, of course. And we do love each other.
“Besides, we don’t have any other prospects.â€
“But we’re issuing marriage licenses to gay and lesbian couples who’ve been denied equal protection under the law. If you are not gay, you can get married to a woman.â€
“Wait a minute. A gay man has the same right to marry a woman as I have. But just because I’m straight doesn’t mean I want to marry a woman. I want to marry Jim.â€
“And I want to marry Tim, Are you going to discriminate against us
just because we are not gay?â€
“All right, all right. I’ll give you your license. Next.â€
“Hi. We are here to get married.â€
“Names?â€
“John Smith, Jane James, Robert Green, and June Johnson.â€
“Who wants to marry whom?â€
“We all want to marry each other.â€
“But there are four of you!â€
“That’s right. You see, we’re all bisexual. I love Jane and Robert, Jane loves me and June, June loves Robert and Jane, and Robert loves June and me. All of us getting married together is the only way that we can express our sexual preferences in a marital relationship.â€
“But we’ve only been granting licenses to gay and lesbian couples.â€
“So you’re discriminating against bisexuals!â€
“No, it’s just that, well, the traditional idea of marriage is that
it’s just for couples.â€
“Since when are you standing on tradition?â€
“Well, I mean, you have to draw the line somewhere.â€
“Who says? There’s no logical reason to limit marriage to couples.
The more the better. Besides, we demand our rights! The mayor says the constitution guarantees equal protection under the law. Give us a marriage license!â€
“All right, all right. Next.â€
“Hello, I’d like a marriage license.â€
“In what names?â€
“David Deets.â€
“And the other man?â€
“That’s all. I want to marry myself.â€
“Marry yourself? What do you mean?â€
“Well, my psychiatrist says I have a dual personality, so I want to
marry the two together. Maybe I can file a joint income-tax return.â€
“That does it! I quit!! You people are making a mockery of marriage!â€
[/blockquote]